Professor William Beaney (1918-2003) formerly of the University of Denver College of Law taught Constitutional law, Administrative Law, Constitutional Criminal Procedure, and a class called Decision Process. I was in attendance from 1974-1977 and was in his class for all of the those except Con Law. He was a delight to have as a teacher of legal principles. Professor Beaney was no sycophant of judges (as are many practicing lawyers), and so did not hesitate to criticize them when they strayed from their sworn oath by trespassing on territory belonging to other branches of government.
For example, Beaney taught that courts can only exercise their jurisdiction when presented with justiciable issues involving cases and controversies. An order issued by a court lacking proper jurisdiction is a nullity. Courts will not hear or decide political questions. The job of the highest appellate courts is to continuously decide and announce legal principles. The Job of lower courts is to follow the rule of law and the legal precedents set by superior courts. Courts do make public policy which is reserved for the politically elected branches of government. These boundaries and limitations on judicial action applies even in those jurisdictions where judges and appellate justices are popularly elected, as they are in Wisconsin and many other states.
The United States Constitution sets up three separate and co-equal branches of government. While they act as checks and balances on each of the other branches, no branch has the right to take upon itself the authority of the other branches. Judges are not legislators and Congress does jot decide divorce cases. The U.S. Supreme Court Justices are not Commanders in Chief of the Armed Forces; The President does not exercise the Judicial Power of the United States.
These are all non-controversial principles learned by every law student and every political science major. At least they used to be. Alas, things have changed. In professor Beaney’s time, Federal District Courts did not decided political issues. Now it seems that’s most of what they do. As of yesterday, it seemed there was no limit. Federal judges could conduct National immigration policy if they wanted. This was so in spite of the fact that Federal immigration policy would seem to more likely rest under the exclusive province of the elected branches, Congress and the President.
The President is very powerful under our Constitution. The President’s zenith of power is when he and Congress act in conjunction.
Trump’s Travel Ban is an instance of the President and Congress acting in Conjunction. By its plain language, Congressional enactment of U.S.C. §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. This power of the President was exclusively granted to the President when Congree enacted this Federal Statute. The President is empowered to exclude anyone from entering the United States whenever he decides it is necessary to do so to protect national security. He does not have to justify his action to any Federal Court. He can act in this venue for good reason, bad reason, or no reason.
A president who abuses this power can only be checked by Congress, not the courts. The only remedy for such abuse is a political remedy, impeachment.
So what in the name of Sam Hill did those Federal District Judges who struck down Trump’s travel ban think they were doing? Did they care? No, they are so politicized and infatuated with their own egos they thought they could appoint themselves as the Superintendents of U.S. immigration policy.
They may as well have ordered Mount Kilauea to stop spreading hot lava over Hawaiian neighborhoods.
Thankfully, the United States Supreme Court ended this madness yesterday. But even this decision is political. It was a 5-4 decision with the 5 conservative justices ruling over the 4 liberal justices. See, the rule of law is dependent on the political affiliation of the justices. The result just happens to be in line with the rule of law established in U.S.C. §1182(f). The four liberals were willing to ignore it to please their political agenda. These are people who refuse to abide by their sworn oath to serve and protect the U.S. Constitution and to respect the rule of law over politics. For them, it’s politics that guides their judicial decisions.